BILL NUMBER: AB 268	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Charles Calderon

                        FEBRUARY 5, 2007

   An act to add Section 1350.5 to the Evidence Code, relating to
hearsay evidence.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 268, as introduced, Charles Calderon. Hearsay evidence:
unavailable declarant.
   Existing law provides, in a criminal proceeding charging a serious
felony, that evidence of a statement made by a declarant is not made
inadmissible by the hearsay rule if the declarant is unavailable as
a witness, and certain other conditions apply. Those conditions
include, among other things, that (1) there is clear and convincing
evidence that the declarant's unavailability was knowingly caused by,
aided by, or solicited by the party against whom the statement is
offered for the purpose of preventing the arrest or prosecution of
the party and is the result of the death by homicide or the
kidnapping of the declarant, and (2) the statement has been
memorialized in a tape recording made by a law enforcement official,
or in a written statement prepared by a law enforcement official and
signed by the declarant and notarized in the presence of the law
enforcement official, prior to the death or kidnapping of the
declarant.
   This bill would provide, in a criminal proceeding charging an act
of domestic violence, child abuse, elder abuse, or a prosecution
under the Street Terrorism Enforcement and Prevention Act, that
evidence of a statement made by a declarant is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness and
the unavailability of the declarant was caused by, aided by,
solicited by, or procured on behalf of the party against whom the
statement is to be used. The bill would provide that a party may be
deemed to have caused or procured the absence of the declarant,
either directly or indirectly, by the use of threatening or violent
conduct directed at the declarant with the intention to dissuade the
declarant from appearing or testifying at the hearing, or with
knowledge that the conduct is reasonably likely to result in the
unavailability of the declarant.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1350.5 is added to the Evidence Code, to read:
   1350.5.  (a) In a criminal proceeding charging an act of domestic
violence, child abuse, elder abuse, or a prosecution under the Street
Terrorism Enforcement and Prevention Act (Chapter 11 (commencing
with Section 186.20) of Title 7 of Part 1 of the Penal Code),
evidence of a statement made by a declarant is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness and
the unavailability of the declarant was caused by, aided by,
solicited by, or procured on behalf of the party against whom the
statement is to be used.
   (b) A party may be deemed to have caused or procured the absence
of the declarant, either directly or indirectly, by the use of
threatening or violent conduct directed at the declarant with the
intention to dissuade the declarant from appearing or testifying at
the hearing, or with knowledge that the conduct is reasonably likely
to result in the unavailability of the declarant.
   (c) In a hearing to establish the unavailability of a declarant
under this section, hearsay statements of the declarant are not
inadmissible to prove the cause of the declarant's unavailability.
The court may determine the cause of the unavailability by a
preponderance of the evidence.